SELF DEFENCE
Crimes Act
Section 418 Self-defence - when available
(1)
A person is not criminally responsible for an offence if the person carries out the
conduct constituting the offence in self-defence.
(2)
A person carries out conduct in self-defence if and only if the person believes the
conduct is necessary:
(a)
to defend himself or herself or another person, or
(b)
to prevent or terminate the unlawful deprivation of his or her liberty or the
liberty of another person, or
(c)
to protect property from unlawful taking, destruction, damage or interference, or
(d)
to prevent criminal trespass to any land or premises or to remove a person
committing any such criminal trespass,
and the conduct is a reasonable response in the circumstances as he or she perceives
them.
Section 419 Self-defence - onus of proof
In any criminal proceedings in which the application of this Division is raised, the
prosecution has the onus of proving, beyond reasonable doubt, that the person did not
carry out the conduct in self-defence.
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Section 420 Self-defence - not available if death inflicted to protect property or trespass to
property
This Division does not apply if the person uses force that involves the intentional or
reckless infliction of death only:
(a)
to protect property, or
(b)
to prevent criminal trespass or to remove a person committing criminal trespass.
Section 421 Self-defence—excessive force that inflicts death
(1)
This section applies if:
(a) the person uses force that involves the infliction of death, and
(b) the conduct is not a reasonable response in the circumstances as he or she
perceives them,
but the person believes the conduct is necessary:
(c)
to defend himself or herself or another person, or
(d)
to prevent or terminate the unlawful deprivation of his or her liberty or the
liberty of another person.
(2)
The person is not criminally responsible for murder but, on a trial for murder, the
person is to be found guilty of manslaughter if the person is otherwise criminally
responsible for manslaughter
Note: Section 421 inserted by Crimes Amendment (Self Defence) Act 2001 (NSW)
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Caselaw

Viro (1978) 141 CLR 88 – common law partial defence

Zecevic (1987) 162 CLR 645 – common law partial defence abolished – objective and
subjective tests need to be satisfied

Conlon (1993) 69 A Crim R 92 – s.418 two subjective tests

R v Hawes (1994) 35 NSWLR 294 – accused’s belief, based upon the circumstances
as the accused perceived them to be, which has to be reasonable and not the belief of
the reasonable man

Kurtic (1996) 85 A Crim R 57

Osland (1998) 197 CLR 316 – subjective test applies to each accused separately

Katarzynski [2002] NSWSC 613 – intoxication irrelevant to reasonableness of
accused’s response

Trevenna (2004) 149 A Crim R 505
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DURESS
The general policy of the law is that a person is responsible for his acts
only where those acts are done by him voluntarily. A person is not, in
general, responsible for acts done by him under duress or coercion.
Within certain limitations, if a person does acts which, when done
voluntarily, amount to a crime, he will not be held criminally responsible
for them if they were done because of a threat that death or really serious
physical harm would be inflicted upon him if he did not do those acts. The
principal limitation is that such a “defence” is available only where the
threat was of such gravity that a person of ordinary firmness of mind and
will, and of the same sex and maturity as the accused person, would have
yielded to that threat in the way that the accused did. Hunt CJ at CL in
Bassett (NSWSC Unreported, 20 May 1994) at 7
Elements
1.
A threat to accused requiring him to commit the offence he has been charged with;
2.
Accused’s power of resistance/will overborne by the threats ASZAmade (subjective
test);
3.
Accused must do the criminal acts required by the person making the threat while his
will is overborne; and
4.
The threats made must be of such a nature that the will of an ordinary person in the
same situation would have been overborne by the threats (objective test)
Burden of Proof
-
Not an affirmative defence – only evidential onus on accused
-
Prosecution must prove offence beyond a reasonable doubt
-
Prosecution must negative duress beyond a reasonable doubt
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Nature of the threat
1.
To inflict violence
-
DPP (NI) v Lynch [1975] AC 653
-
Osborne v Goddard (1978) 21 ALR 189
-
Hudson & Taylor [1971] 2 All ER 244 – threat of future violence may be
sufficient
2.
Need not be a threat to harm accused personally
-
Hurley & Murray (1967) VR 526 – can be a threat against accused’s family or
any threat to kill or do GBH to another person
3.
Threat must be present & continuing; no avenue of escape
-
Hudson & Taylor [1971] 2 All ER 244 – threat must be present and continuing,
imminent and impeding
-
Williamson [1972] 2 NSWLR 281 – even if a threat is not immediate it can still
be effective if it is continuing and seen to be continuing by accused
4.
Threat must have been directed to procuring the commission of the crime
-
Dawson [1978] VR 536
Subjective Test

Hudson & Taylor [1971] 2 All ER 244 – accused must reasonably apprehend that
threat will be carried out and have no means of preventing it

Lawrence [1980] 1 NSWLR 122 – accused must show that his acts were not
voluntary, that he was virtually a slave
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Objective test
-
“A sober person of reasonable firmness sharing the characteristics of the accused”
 Graham (1982) 74 Cr App Rep 235
-
Graham approved by House of Lords in Howe [1987] 1 All ER 771
-
Aust authorities  Hurley & Murray (1967) VR 526 “a person of ordinary firmness”
-
Lawrence [1980] 1 NSWLR 122 “an average person of ordinary firmness of mind, of
a like age & sex”
-
Abusafiah (1991) 24 NSWLR 531 “ordinary firmness of mind & will, & of the same
sex & maturity”
-
Lanciana (1996) 84 A Crim R 268 “could compel a person of ordinary firmness of
disposition.”
-
Crown must prove either that:
i.
When accused did acts there was no reasonable possibility that he did so by
reason of threats
ii.
No reasonable person of ordinary firmness of mind & will, & of the same sex &
maturity of the accused would have yielded to the threat in the way the accused
did (Abusafiah per Hunt J)
Accused has an avenue of escape
-
AG v Whelan [1934] IR 518 “if there is reasonable opportunity for the will to reassert
itself, no justification can be found in antecedent threats”
-
Hurley & Murray (1967) VR 526 – defendant must have not means of preventing the
execution of the threat
-
Lawrence [1980] 1 NSWLR 122 – defence will fail if accused failed to avail himself
of an opportunity which was reasonably open to him to render the threat ineffective
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Marital Coercion
-
Common Law presumption that certain crimes committed by a woman in the presence of
her husband were coerced by him
-
Presumption abolished by statute in NSW
Caselaw
(1)
Type of harm threatened

Hurley and Murray [1967] VR 526 – threat against any person of serious harm
sufficient

Lawrence [1980] 1 NSWLR 122 – threatening phone call insufficient when accused
could have rendered threat ineffective

Graham (1982) 74 Cr App Rep 235 – battered wives
(2)
Present and continuing threat and opportunity to escape

Hudson and Taylor [1971] 2 QB 202- threats compelling even though they could not
be exercised immediately, but later – a threat of future harm may be sufficient

Williamson [1972] 2 NSWLR 281 – threat that is not immediate can still be effective
if it is continuing and seen to be continuing
(3)
Reasonable belief

Graham (1982) 74 Cr App Rep 235 – an implied threat may be sufficient if accused
had reasonable belief it would be carried out

Runjanjic and Kontinnen (1991) 53 A Crim R 362 – battered wives evidence relevant
to subjective and objective tests
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(4)
Ordinary firmness

Lawrence [1980] 1 NSWLR 122

Graham (1982) 74 Crim App R 235

Abusafiah (1991) 24 NSWLR 531

Runjanjic and Kontinnen (1991) 53 A Crim R 362

Makrynikos [2006] NSWCCA 170
Accused voluntary party to criminal exercise then later subject to duress

Hurley & Murray (1967) VR 526

Calderwood & Moore [1983] NI 361

Nguyen [2008] NSWCCA 22; 181 A Crim R 72
Murder & Attempted Murder

DPP (NI) v Lynch [1975] AC 653

McConnell & McFarland & Holland [1977] 1 NSWLR 714

Howe [1987] 1 All ER 771

Gotts [1992] 2 AC 412 – attempted murder

Bassett (unreported, NSW Supreme Court, 20.5.94)
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